2 018 is the silver jubilee year of the 1993 Second Judges’ case (Judges II) which transferred ultimate decision-making power in the appointment of Supreme Court and High Court judges from the Executive to a collegium of three or five (as the case may be) Supreme Court judges, and narrowed the scope and content of the Executive’s role in the appointment process. The judgment was a radical judicial amendment of the Constitution that established a doctrine of “judicial primacy” over appointment of judges that was without precedent anywhere in the world. The collegium system was further sharpened and reinforced in 1998 by the Third Judges Case (Judges III).
The imbroglio over the appointment of Justice K.M. Joseph to the Supreme Court of India shows that while Judges II and III remain the law on paper, in practice, the doctrine of judicial primacy established by these two cases has been substantially rejected by the Executive. This article highlights in some detail how the KM Joseph appointment process has deviated from the doctrine of judicial primacy established in Judges II and III.
Six crucial violations of the ‘Judicial Primacy’ Model
In the K M Joseph case, the Executive has made six crucial changes to the role of the Executive, and to the scope and content of the permissible contribution of the Executive to the appointment process. These changes are fatal to the doctrine of judicial primacy.
First, the Executive has decisively removed the prohibition against unilateral segregation. Whatever the practice may have been in the past, when Gopal Subramanium’s name was unilaterally “segregated” out by the Government in 2014, a clear view was communicated by the Chief Justice of India to the Government of India in July, 2014, based on the law laid down by the Second and Third Judges cases (Judges II and III):
“I don’t approve of segregation of proposal without my knowledge and concurrence…In future, such a procedure of unilateral segregation should not be adopted by the Executive.”
This July 2014 communication has not been publicly countermanded by the Collegium and so it still stands. Yet, Mr Joseph’s name was unilaterally segregated by the Executive without the knowledge or concurrence of the Collegium. This crucial change will allow the Executive, at the very minimum, to tweak inter-se seniority of judges in the Supreme Court (as has happened with Mr Joseph) and, at worst, to block appointments (as happened when Gopal Subramanium was prompted by the segregation to withdraw his name). The Collegium appears to have accepted this unilateral revision of the appointment system.
Second, the Executive has created for itself a new right to ask for additional names to be “aggregated” to a recommendation submitted to it. In this case, proposing the name of a class of judges based on seniority and representation of High Courts which may be deciphered as pointing to specific individuals). This is in direct violation of Judges-II and III, under which only the Collegium may propose names. This is precisely the kind of mischief that Judges II and III had tried to forestall by narrowing the role of the Executive in selection and appointment of judges.
Third, the Executive has read down the recommendation of the Collegium. The Second and Third Judges cases (Judges II and III) clearly require that the “President is expected to make the appointment [of Supreme Court and High Court judges] in accordance with the final opinion of the Chief Justice of India”. The January 10, 2018 Collegium recommendation had asked that Mr K M Joseph and Ms Indu Malhotra be appointed to the Supreme Court “in that order”. In other words, there is no Collegium recommendation to date that Ms Indu Malhotra may be appointed to the Supreme Court ahead of Mr Jospeh or alone. Instead, the Executive “read down” the recommendation without any reference to the Collegium. In this connection, the Chief Justice accepted the “reading down” of the recommendation and swearing in Ms Malhotra without a Collegium meeting, although Judges II and III are very clear that the Chief Justice cannot substitute the Collegium in this matter.
Fourth, strict limits set by Judges Ii and III on the scope and content of the Executive’s contributions to the selection process have been removed. Judges II clearly lays down the lakshman rekha for the role of the Executive in the appointment of judges: “There may however, be some personal trait of an individual lawyer or Judge, which may be better known to the Executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultees, before the appointment is made.” That is the limit set for the contribution of the Executive.
In addition, Judges II and III make it clear that the appointment process is only about selecting individuals for appointment to the Supreme Court and High Courts. What this means is that the appointments process is not a forum for the Executive to raise policy concerns such as representation of High Courts or seniority. Yes, the concerns raised in the Union Law Minister’s letter (Mr Ravi Shankar Prasad) are certainly important. However, they ought to be taken up as part of routine inter-branch dialogue — for example, during the annual conference of chief justices and chief ministers, or on some other such suitable occasion. They have no place in the selection process.
Notwithstanding the limit set by Judges II and III on what the Executive may say in the selection process, the April 26, 2018 Government letter says:
“…appointment of Shri Justice K M Joseph as a Judge of the Supreme Court at this stage does not appear to be appropriate… [because] in view of the sanctioned judge strength of Kerala High Court of 47 judges, it has received adequate representation in the Supreme Court and as Chief Justices of High Courts. At this stage, elevation of one more judge from Kerala High Court as a Judge of the Supreme Court of India does not appear to be justified as it does not address the legitimate claims of the Chief Justices and Puisne Judges of many other High Courts and forestalls the claim of other senior Chief Justices and Puisne Judges. It is also in our considered view not in accord with the parameters laid down by the Supreme Court itself in the Second and Third Judges cases.”
The Law Minister also asserts in his April 26, 2018 letter Justice Joseph’s lack of adequate national seniority as a High Court judge as another reason not to appoint him.
The Government’s letter does not do what it was supposed to do (bring to the attention of the Collegium any personal traits of Mr Joseph that they may not be aware of “relevant for assessing his potentiality to become a good Judge”). It crosses the lakshman rekha, raises inadmissible policy and institutional issues and links the appointment of an individual judge to those policy issues.
What was expected from the Collegium on May 4, 2018, when it first met after the Government returned the recommendation for reconsideration, was that it a) reject the inadmissible portion of the Law Minister’s letter coupling Justice Jospeh’s appointment to broader policy issues; and b) note that the Government had not brought to the attention of the Collegium any “personal trait” of Justice K M Joseph, “relevant for assessing his potentiality to become a good Judge” that may be known to the Executive but unknown to the Chief Justice and the Collegium; and c) follow the law laid down in the Second Judges’ cases, which is as follows:
“Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others. The others, if they change their earlier opinion, must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken.”
Given that over 15 weeks had passed by May 4, 2018 since the original recommendation of the collegium for the appointment of Justice Joseph’s name had been sent to the Government, we would have expected the Chief Justice to directly address the President with a request to proceed with the appointment of Justice Joseph to the Supreme Court.
On this basis, the fifth change that the Executive has made to judicial primacy is to disregard and disobey the time schedules and processes stipulated in Judges II and III.
The sixth change is that the Executive has introduced into the selection system the doctrine of fair representation of High Courts which was not part of Judges II and III. The agenda of the May 4, 2018 Collegium meeting accepts the concept and the minutes of the May 11, 2018 meeting links the reiteration of Justice Joseph’s recommendation to the aggregation of other names as suggested by the Executive.
The two policy objections raised by the Minister against Mr Joseph’s appointment (fair representation of High Courts and national seniority) are inadmissible because they fall outside the permissible role of the Executive as laid down in Judges II and III. They need to be discussed and demystified in some detail separate from the issue of their inadmissibility, because they are red herrings.
Fair Representation of High Courts
The concept of “fair representation” of High Courts has no Constitutional or statutory basis. It does not, and cannot, mean representation sensu stricto, as no judge on any court can be anybody’s agent or representative. Also, High Courts have no role, voice or responsibility whatsoever in any aspect of the functioning of the Supreme Court and there should therefore be no question of High Courts as an institution, or even as a group of judges, having to have representation on the Supreme Court. What the idea can be taken to mean is no more than that every High Court should have judges from it promoted to the Supreme Court in some fair proportion. But on what rationale? And what will be the basis to determine the quantum of representation?
The April 26, 2018 letter of the Executive uses authorised judge strength as a measure of representation. However, this is not a sound measure because there is no scientific method for calculating judge strength of High Courts. It is traditionally calculated in a very crude manner (using that phrase in a statistical sense) by dividing the number of cases disposed of by the actual judge strength to get the average disposal per judge. The total number of cases pending is then divided by the average per judge disposal to arrive at the required judge strength. There is no weightage of cases — all cases from traffic challans to complex criminal and civil cases are given equal weight. There is no attention to efficiency or merit. This approach inadvertently rewards inefficiency because the lower the average disposal per judge the higher the required judge strength. Until the method of calculating High Court judge strength becomes more scientific, it cannot be a rational basis for deciding the number of judges we should have in the Supreme Court.
Nor can the judge to population ratio be the basis for calculating judge strength because there is no linear (cause-effect) relationship between number of people in a state and the number of cases they file in high courts. Case filing is very much a function of social and economic development (number of cases filed per thousand population being high in Kerala and Delhi and low in Bihar and Jharkhand).
The table below shows the anomalies in several cases between unweighted pendency, High Court judge strength and number of judges in the Supreme Court.
|NAME OF HIGH COURT|| PERCENTAGE SHARE OF NATIONAL PENDENCY IN HIGH COURTS (NOT INCLUDING DISTRICT JUDICIARY)
|NUMBER OF JUDGES IN THE SUPREME COURT AS OF MAY 5, 2018(% of sanctioned strength of 31)||POPULATION SHARE (%)|
|Punjab and Haryana||7.5%||1 (3.2%)||Total: 4.48% (Punjab=2.3%; Haryana=2.09%)
|Madras||7.3%||1 (3.2%)||(Tamil Nadu=5.96%; Puducherry=0.1%)|
|Andhra Pradesh and Telangana||7.24%||2+1 (9.6%)||AP=4.08%; T=2.9%)|
|Madhya Pradesh||7.1%||2 (6.4%)||M.P.=6%|
|Bombay||6.5%||3+1 (12.8%)||Total=9.45% (Maharashtra=9.28%; Goa=0.12%; DD=.0.02%; DNH=0.03%)|
|Jammu & Kashmir||1.47%||0||J&K=1.04%|
|Himachal Pradesh||0.7%||1 (3.2%)||HP=0.57%|
|Guwahati||0.7%||1 (3.2%)||Total=2.94% (Assam=2.58%, Arunachal=0.11%; Mizoram=0.09%; Nagaland=0.16%)|
|Four N.E. High Courts combined (Meghalaya, Manipur, Sikkim and Tripura)||0.17%||0||Total= 0.81%; (Meghalaya= 0.24%; Manipur=0.22%; Sikkim=0.05% Tripura=0.30%)|
The prize for “best represented” High Courts in the Supreme Court (adding the Bar appointees to the High Courts of their original States) go to Delhi with 5 judges and Bombay with 4 judges. Between these two High Courts they have some 29% of the Supreme Court seats (and 14.2% of High Court seats) although they account for only 8.1% of the total share of national pendency and 10.83% of the population of the country. Add 3 judges from Andhra Pradesh and you have 3 High Courts garnering 38.4% of the seats in the Supreme Court although they have just 15.34% of the national share of pendency.
Perhaps one hidden factor driving seat share in the Supreme Court may be wealth. The jurisdictions under Bombay and Delhi High Courts account for some 32.2% of national GDP (Bombay High Court = 28% and Delhi High Court = 4.2%).
Even by this standard Kerala can no longer be dismissed as a small state. Kerala ranks 12th in terms of its contribution to GDP (4.1%), immediately behind 11th ranked Delhi). At the same time as the Law Minister says that Kerala High Court is adequately represented, he is silent about Delhi. Kerala’s pendency (1,66, 375) is more than double the pendency of the Delhi High Court (67,082). Yet, Delhi High Court’s judge strength is some 28% higher than Kerala’s and Delhi has today four judges in the Supreme Court (including former Delhi-based advocate Ms Indu Malhotra) and one Chief Justice of a High Court.
Another reason to reject the doctrine of representation of High Courts on the Supreme Court is that opportunities to be appointed to the Supreme Court often get captured by privileged groups.
Take Kerala as an example. Miraculously, 12 of 15 (80%) current or former Supreme Court judges whose parent High Court is Kerala come from just two socially, economically and politically powerful communities — upper caste Hindu (7 judges) and Christian (5 judges) — that comprise some 30% of the population. Ironically, if and when Justice K M Joseph is appointed to the Supreme Court, this “oligopoly” will only worsen and rise to 13/16 (81%). In contrast, there have been only three Kerala Supreme Court judges from the remaining roughly 70% of Kerala — two muslims and one member of the SC community. No judge or lawyer has ever been appointed to the Supreme Court of India from the most populous OBC communities although there has been a galaxy of distinguished judges and lawyers from amongst them. No member of the Kerala ST community has ever been appointed to the Supreme Court.
There has only ever been a single woman judge in the Supreme Court from Kerala (Mme Justice Fathima Beevi, who was a judge for just two and a half years some 26 years ago and is now listed in the Supreme Court website list of former judges as “Mr.” Fathima Beevi) although there have always been, and continue to be, very distinguished women members of the Bar (including the first woman High Court judge in the country). Nepotism is also a huge concern. A writ petition was filed in the Kerala High Court in March, 2018 challenging the latest recommendations being processed for elevation to the High Court on the basis inter alia that many names recommended are related to judges. While entire communities remain “unrepresented”, some families have, or have had, more than one judge in the Supreme Court. A similar analysis of other High Courts may reveal similar patterns.
The assertion of the principle of national seniority is another red herring, like fair representation of High Courts. Again, there is no Constitutional or statutory basis for all-India seniority amongst High Court judges. It has never been an overriding or consistently applied principle for appointment to the Supreme Court.
Each High Court is a stand-alone Constitutional institution unconnected administratively with each other or with the Supreme Court. Indeed, they are separated by a most important wall in the Constitution — the wall of federalism. High Courts are part of the States under Part VI of the Constitution, whereas the Supreme Court is part of the Union under Part V of the Constitution. Just as there cannot be a seniority list as amongst civil servants of States, there ought not to be an all-India seniority list of State High Court judges. In trying to build a Constitutionally non-existent bridge between High Courts and the Supreme Court, Justice J.S. Verma’s judgment in Judges II tried to advance the idea of all-India seniority and a doctrine of “legitimate expectations” of High Court judges to be appointed to the Supreme Court. As discussed later in this article, this was met with a strong dissent from Justice Ahmadi.
A simple way to demonstrate the irrelevance of all-India seniority amongst High Court judges is to re-order the list of the 20 sitting Supreme Court judges who came from High Courts in accordance with their inter-se “all-India seniority” in terms of their original appointments to High Courts. The seniority of 15 of 20 current Supreme Court judges (75%) within the Supreme Court is not in line with their “all-India seniority” vis-a-vis their Supreme Court colleagues, as will be seen in the table below. It shows that this principle has not been applied as a consistent criterion for appointment. More importantly, the assertion of this criterion seeks to achieve Executive parity with the judiciary in the selection process in violation of Judges II and III.
|Current relative “seniority” of Supreme Court judges who were High Court judges by date of appointment to the Supreme Court (in brackets: consequence of moving to all India seniority system)||Relative “All India Seniority” amongst Supreme Court judges (in brackets: date of initial appointment as High Court judges)|
|1.Dipak Misra (no change)||1.Dipak Misra (17.1.96)|
|2.J. Chelameswar (no change)||2.J. Chelameswar (23.6.97)|
|3.R.Gogoi (drops to 12)||3.M.Lokur (19.2.99)|
|4.M.Lokur (moves up to 3)||4.A.K. Sikri (7.7.99)|
|5.Kurien Joseph (drops to 11)||5.A.M. Sapre (25.10.99, elder to Arun Mishra)|
|6.A.K. Sikri (moves up to 4)||6.Arun Mishra (25.10.99)|
|7.S.A. Bobde (no change)||7.S.A. Bobde (29.3.00)|
|8.N.V. Ramana (drops to 10)||8. A.M. Khanwilkar(29.3.00)|
|9.Arun Mishra (moves up to 6)||9.D.Y. Chandrachud (29.3.00)|
|10.A.K. Goel (drops to 15)||10.N.V. Ramana (27.6.00)|
|11.A.M. Sapre (moves up to 5)||11.Kurien Joseph (12.7.00)|
|12.R. Bhanumathi (drops to 16)||12.R.Gogoi (28.2.01)|
|13.A.M. Khanwilkar (moves up to 8)||13.Ashok Bhushan (24.4.01)|
|14.D.Y. Chandrachud, (moves up to 9)||14.Sanjay Kishan Kaul (3.5.01)|
|15.Ashok Bhushan (moves up to 13)||15.A.K. Goel (2.7.01)|
|16.Sanjay Kishan Kaul (moves up to 14)||16.R. Bhanumathi (3.4.03)|
|17.M.M. Shantanagoudar (swaps to 18 because he is younger to S.A. Nazeer)||17.S.Abdul Nazeer (12.5.03)|
|18.S.Abdul Nazeer (swaps to 17 because he is elder to M.M. Shantanagoudar)||18.M.M. Shantanagoudar (12.5.03)|
|19.Navin Sinha (no change)||19.Navin Sinha (11.2.04)|
|20.Deepak Gupta (no change)||20.Deepak Gupta (4.10.04)|
These six deviations hit at the core of the doctrine of judicial primacy established in 1993. Under the doctrine of judicial primacy, a decision unanimously made by the judiciary had to be accepted and implemented by the Executive. In plain terms, the Executive has failed to do so with respect to Justice Joseph. The Executive has been able to set terms, going beyond what is in their purview, under which Justice Jospeh’s name will be considered by them. Prescribed time frames have been disregarded. The quiet acceptance of the six crucial changes to the intricately calibrated doctrine of judicial primacy developed in Judges II and III as well as the debatable principles of fair representation of High Courts and national seniority, show that the doctrine of “judicial primacy” may be dead. We may be entering a new era of “due deference” by the Collegium to the Executive and an acceptance of a much more expansive Executive role in the appointment of judges than that permitted by Judges II and III to achieve “Executive parity” with the role of the judiciary.
Given that the Constitutional amendment establishing the National Judicial Appointments Commission has been struck down, and if the collegium system based on the doctrine of judicial primacy is no longer fully and strictly operational in practice, it seems that we currently are without an effective system for appointments that is strictly followed in letter and spirit. This could lead to erroneous and illegal appointments being made without accountability or remedy, opening up judicial independence to mortal danger. This crisis has revealed the main weakness of the existing model based on judicial primacy — the model fails where the Executive decides not to obey the process stipulated by law and judges accommodate what they consider to be the legitimate concerns of the Executive even when those concerns are not admissible under the existing law.
What we need urgently is a modern, democratic, transparent and accountable system of judicial appointments. Public opinion should be mobilised in support of such a system. Meanwhile we hope that the collegium of the Supreme Court will apply the principles and procedures laid down by Judges II and III strictly in letter and in spirit.
The role of the judiciary seems to be gradually shifting from being a check on power to being a partner in power. The separation of powers is being weakened in a quest for reunification of all sovereign power under one common leadership. This is undoubtedly destructive of the very concept of judicial independence. It requires a separate, detailed analysis beyond the scope of this piece which focuses on the systemic implications of the K M Joseph imbroglio. Judges who will join the Supreme Court going forward under the new approach to judicial selection may increasingly accept the doctrine of due deference to, and comity with, the Executive and be more open to the doctrine of executive parity with the judiciary. They may not be keen to assert “judicial primacy”. The burden of defending judicial independence will therefore shift to the Bar, academia and civil society.
The struggle will be long and hard.